ffonseca_articleCalifornia has become a hub for asbestos litigation.  Its plaintiff-friendly law and juries have attracted plaintiffs from both California and across the country.  A case currently pending in the Supreme Court of California concerning whether a duty is owed to a plaintiff who alleges “take-home” asbestos exposure could have a major impact on whether California becomes an even greater hotbed for asbestos litigation.  Should the Court impose a duty on an employer for “take home” exposures, this expansion of an employer’s duty is likely to lead to increased asbestos filings as plaintiffs seek out attractive jurisdictions based on substantive legal doctrine.

Recently, the Supreme Court of California heard oral arguments in coordinated “take-home” asbestos cases. In both cases, at issue is whether an employer owes a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing.

In Kesner v. Superior Court, 226 Cal.App.4th 251 (2014), plaintiff, the nephew of a brake manufacturer’s employee, alleged that he developed mesothelioma as a result of exposure to asbestos from his uncle’s dirty and dusty clothing during frequent visits to his uncle’s home. In finding that the brake manufacturing company employer owed plaintiff a duty of care, the court found that “[a]s a general matter, harm to others from secondary exposure to asbestos dust is not unpredictable.” Kesner 226 Cal.App.4th at 259. Further, the harm “from a lack of precautions to control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable.” Id.  As for employers, the court found that “extending the duty of care to [an employee’s household members or long term occupants of a residence] does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited number of persons.”  Id. at 261. Thus, the court not only imposed a duty on an employer for “take home” exposures, it extended a duty to any guest that frequents an employee’s home.  It is important to note, however, that despite the fact that plaintiff claimed that he was exposed to asbestos through his uncle’s clothing, plaintiff’s claim was premised on a theory of products, not premises, liability.

That distinction is important, as a month later a different appellate court ruled against extending a duty of care based on “take home” exposure in the context of a case alleging premises liability. In Haver v. BNSF Railway Co., 226 Cal.App.4th 1104 (2014), the heirs of an employee’s deceased wife claimed that she developed mesothelioma as a result of exposure to asbestos from the clothing her husband wore home while employed by the defendant company. Deciding not to follow the earlier Kesner decision, the Haver court distinguished the two cases by pointing out that Kesner was a products case while Haver involved allegations of premises liability. Importantly, though, the court noted that courts should be wary of the consequences of extending employers’ liability too far. Id. at 1110.

A decision by the California Supreme Court which
Continue Reading New Trend Emerging From Pending California Take-Home Exposure Decision?

The financial crisis and subsequent fallout has been widely publicized, and now the effects are beginning to reverberate in courts across the country.  In many jurisdictions deep cuts to state budgets have led to layoffs, furlough days, vacant judicial positions, and even courthouse closings.  These cuts threaten one of the pillars of the American justice system—the right to a fair and speedy trial.  Recently, the Massachusetts Supreme Judicial Court (“SJC”) took the unusual step of publicly criticizing Governor Deval Patrick after he approved a budget which the Court says will force them to close courthouses and lay off staff.  Roderick L. Ireland, Chief Justice of the Massachusetts Supreme Judicial Court, and Robert A. Mulligan, Chief Justice for Administration and Management, remarked that the new budget will jeopardize defendants’ Constitutional right to a speedy trial, and undermine the quality of courthouse services. According to the SJC and Mulligan, Massachusetts courts have lost over 1,100 employees in recent years and more than 60 percent of the courts are staffed below the level necessary to ensure the prompt delivery of justice.

Meanwhile in California, all courts are currently closed one day a month as a cost-saving measure. At least 19 of 580 Los Angeles County courtrooms were closed and as many as 50 more are to be closed by September. In San Francisco, 200 Superior Court employees, more than 40% of the staff, will be laid off on September 30, and many courtrooms are to be closed by October 3.

Significantly, in California, the law gives priority to criminal cases, so nearly all the shuttered courtrooms will be those currently devoted to civil cases.  It remains to be seen what impact this will have on litigation in California, but it is likely that many plaintiff’s firm will begin “venue shopping” for counties least affected by the cuts.

Below are several other examples of budget cuts which are likely to have an adverse impact on the courts in various states:

  • New Hampshire- As many as 11 more furlough days over the remainder of 2011.  Court staffs have been cut by 10% over the past year.
  • New Jersey- $25 million budget cuts, modernization of court houses state wide put on hold.
  • Minnesota- Hiring freeze in effect, judicial positions left vacant. Court hours were cut, and judicial districts consolidated.
  • Florida- Hiring freeze and layoffs of court employees. Pay cuts for judges and other elected officials.

We will continue to monitor budget cuts nationwide and follow up with a report once the practical impact of these cuts on civil litigation are known.
Continue Reading Financial Crisis Impacts Courtrooms Nationwide